The Jurisprudence of Emergency

Colonialism and the Rule of Law

Nasser Hussain

Publication Year: 2003

Hussain analyses the uses and the history of a range of emergency powers, such as the suspension of habeas corpus and the use of military tribunals. His study focuses on British colonialism in India from the late eighteenth to the early twentieth century to demonstrate how questions of law and emergency shaped colonial rule, which in turn affected the place of colonialism in modern law, depicting the colonies not as passive recipients but as agents in the interpretation and delineation of Western ideas and practices. Nasser Hussain is Professor of History at Amherst College.

Contents

Acknowledgments

This book began as a dissertation at the University of California, Berkeley. My thanks to all of my teachers there: Tom and Barbara Metcalf, Martin Jay. Thank you to the Harvard Society of Fellows, and in particular Amartya Sen, for offering me time and space to work. I completed this manuscript at Amherst College, and I thank my colleagues in the...

Chapter 1. Introduction: The Historical and Theoretical Background

In 1955, the Supreme Court of Pakistan (then called the Federal Court) found itself, in the words of the chief justice, “at the brink of a chasm.”1 The question before the Court was whether the governor-general had acted illegally in his recent decision to dissolve the constituent assembly and rule, in effect, by decree. The story is a long and unhappy one,...

Chapter 2. The Colonial Concept of Law

Readers familiar with the texts of modern jurisprudence will no doubt
have recognized in the title of this chapter a reference to one of the
more famous books of that corpus, H. L. A. Hart’s The Concept of Law.1 First published in 1961, Hart’s work has been rightly credited with reinvigorating jurisprudence in general and its positivist ...

Chapter 3. The “Writ of Liberty” in a Regime of Conquest: Habeas Corpus and the Colonial Judiciary

In J. H. Baker’s Introduction to English Legal History there is a surprising opening reminder to those who would assume the writ of habeas cor-us has always stood for the protection of individual liberty against state power: “the writ of habeas corpus has become the principal safeguard of personal liberty. It is not a little ironic, therefore, that its original...

Chapter 4. Martial Law and Massacre: Violence and the Limit

In Amritsar, 13 April 1919 was a day marked by the heat and dust characteristic of the Punjab at that time of the year. General Dyer, who had been in the city since 11 April, spent the morning marching round the city, reading a proclamation forbidding the residents from leaving the city or gathering in processions or assemblies. By 1:00 P.M., however,...

Conclusion A Postcolonial Postscript

The idea of a rule of law has emerged in our time as a powerful discourse of legitimacy, one which articulates restraining norms on both governors and governed. As this study of colonial legality has shown, however, there remains an intractable tension between the rule of law and the use of emergency powers that are invoked to confront the various crises...

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